Today many feminists seem relatively content with the treatment of rape and other sexual violence against women under international criminal law. In the context of the conflict in Bosnia and Herzegovina in the early 1990s, feminist activists made a concerted effort to affect the statute establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), the rules of evidence under which rape and other crimes of sexual violence would be prosecuted, the form the indictments of crimes of sexual violence would take, and the strategies and legal argumentation made at both the trial and the appellate levels. For the most part, much to the surprise of many feminists themselves, they have been successful. As Joanne Barkan comments: “From the start, most observers considered the [ICTY] a sop to human rights and feminist activists who wanted intervention.... Almost no one expected it to succeed. And yet to some extent, at least for women, it did.”
1 Barkan, Joanne, As Old as War Itself: Rape in Foca, Dissent, Winter 2002, at 60, 62 ; see also Charlesworth, Hilary, Feminist Methods in International Law, 93 AJIL 379, 387 (1999) (noting that the recognition of sexual violence as potentially a crime of genocide, a crime against humanity, and a war crime “was the result of considerable work and lobbying by women’s organizations”); Chinkin, Christine, “Reconceiving Reality”: A Ten-Year Perspective, 97 ASIL Proc. 55, 55 (2003) (listing “the inclusion of gender crimes within the jurisdiction of the international criminal tribunals” as an initiative that has “met with considerable success”); Goldstone, Richard, The United Nations’ War Crimes Tribunals: An Assessment, 12 Conn. J. Int’l L. 227, 231 (1997) (describing the effect of feminist lobbying on his work as a prosecutor before the ICTY and the International Criminal Tribunal for Rwanda: “Certainly if any campaign worked, this one worked in my case . . . “ ) .
2 Much has been written about the treatment of rape as a war crime. For an early doctrinal argument that rape has violated international law for centuries, see Khushalani, Yougindra, Dignity and Honor of Women as Basic Human Rights (1982), discussed in detail in Engle, Karen, International Human Rights and Feminism: When Discourses Meet, 13 Mich. J. Int’l L. 517, 539–40 (1992). See also Meron, Theodor, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424, 425 (1993).
3 Meron, supra note 2, at 426-28.
4 Id. at 426 (referring to Control Council Law No. 10, which the four occupying powers in Germany adopted as a charter for war crimes trials by their own courts there).
5 Id. at 425.
6 See Charlesworth, supra note 1, at 386-87 (noting that Article 27 of the Fourth Geneva Convention, which specifically protects women from sexual crimes, “assumes that women should be protected from sexual crimes because they implicate a woman’s honor, reinforcing the notion of women as men’s property, rather than because they constitute violence”).
7 Meron, supra note 2, at 428.
8 See Catharine, A. MacKinnon, Rape, Genocide, and Women’s Human Rights, in Mass Rape: The War Against Women in Bosnia-Herzegovina 183, 190 (Stiglmayer, Alexandra ed., 1994) [hereinafter Mass Rape] (“Like all rape, genocidal rape is particular as well as part of the generic, and its particularity matters. This is ethnic rape as an official policy of war in a genocidal campaign for political control.”). For an elaboration of the use of the term, see Allen, Beverly, Rape Warfare: The Hidden Genocide in Bosnia-Herzegovina and Croatia 62 (1996) (explaining that “[g]enocidal rape is a military policy of rape for the purpose of genocide currently practiced in Bosnia-Herzegovina and Croatia by the Yugoslav Army, the Bosnian Serb forces, and the irregular Serb militia known as Chetniks,” and listing “three main forms” of genocidal rape).
9 For a similar argument in a different context, see Kennedy, David, The Move to Institutions, 8 Cardozo L. Rev. 841 (1987).
10 Because most of the feminist debate and strategy centered on rapes in Bosnia and Herzegovina, the focus of this piece is the ICTY. That said, feminists have been criticized for what at times has seemed an exclusive focus on Europe. See, e.g., Volpp, Leti, Talking Culture: Gender, Race, Nation and the Politics of Multiculturalism, 96 Colum. L. Rev. 1573 (1996) (criticizing specifically the piece by Doriane Lambelet, Coleman, Individualizing Justice Through Multiculturalism: The Liberals’ Dilemma, 96 Colum. L. Rev. 1093 (1996)). I could be criticized for perpetuating the Eurocentrism here. Yet, because part of my argument is that understanding the context in which sexual assault and war occur is crucial to any strategy for attending to it, I do not presume that this analysis would apply equally to other areas such as Rwanda, Sierra Leone, or Darfur.
11 The listing together of women and children as in need of special treatment has been challenged in other contexts. See, e.g., Biel, Steven, Down with the Old Canoe: A Cultural History of the Titanic Disaster 23–42 (1996) (discussing whether the naval call for “women and children” reflects chivalry or infantilization); id. at 101-02 (discussing how some use the incident of the Titanic to “denounce the ‘present-day woman’ for her weakness and dependence, her willingness to ‘accept man’s tribute in time of safety and his sacrifice in time of danger, as if she were still in her baby age’“) (quoting Goldman, Emma, Suffrage Dealt Blow by Women of Titanic, Denver Post, Apr. 21, 1912, §1, at 8 ).
12 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex, Art. 5(g) (May 25, 1993), 32 ILM 1203 (1993), available as amended at <http://www.un.org/icty> [hereinafter ICTY Statute].
13 ICTY, Rules of Procedure and Evidence, Rule 34(A)(ii), UN Doc. IT/32 (1994), 33 ILM 484 (1994), available as amended at <http://www.un.org/icty> [hereinafter ICTY Rules].
14 Id., Rule 34(B).
15 Id., Rule 96, regarding cases of sexual assault, reads:
In cases of sexual assault:
(i) no corroboration of the victim’s testimony shall be required;
(ii) consent shall not be allowed as a defence if the victim
(a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or
(b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;
(iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;
(iv) prior sexual conduct of the victim shall not be admitted in evidence.
For a discussion of the history of and amendments to this rule, see Patricia Viseur, Sellers, Individual(s’) Liability far Collective Sexual Violence, in Gender and Human Rights 153, 160 (Knop, Karen ed., 2004) (discussing how Rule 96 has been amended three times, the first time “ostensibly due to a male generated outcry because consent appeared to be eliminated, not qualified, as a defence to wartime rape”). For the text of amendments to the rule, see ICTY Rules, supra note 13, UN Doc. IT/32/Rev.3 (1994), UN Doc. IT/32/Rev.3/Corr.3 (1995).
16 Chief Prosecutor Richard Goldstone created the position. Katherine, Hall-Martinez & Bedont, Barbara, Ending Impunity for Gender Crimes Under the International Criminal Court, 6 Brown J. World Aff. 65 (1999). Patricia Viseur Sellers was originally appointed to that position and remains in it today.
17 Barkan, supra note 1, at 63.
18 Prosecutor v. Furundžija, No. IT-95-17/1-T, para. 172 (Dec. 10, 1998); Prosecutor v. Delalić, No. IT-96-21-T, paras. 494-96 (Nov. 16, 1998) [hereinafter Celebići]. Sexual violence against men has also been found to be torture. See, e.g., Prosecutor v. Tadić, No. IT-94-1-T, paras. 194-204, 719-30 (May 7, 1997); see also Sellers, supra note 15, at 164 n.60. The indictment against Tadić originally included charges of rape. But when Witness F, expected to testify that Tadić had raped her in the Omarska camp, withdrew from the proceedings, prosecutors dropped charges 2, 3, and 4 of the indictment. Id.
19 E.g., Prosecutor v. Kunarac, Nos. IT-96-23-T & IT-96-23/1-T, para. 436 (Feb. 22, 2001) [hereinafterKunarac (Trial Chamber) ]; Furundžija, supra note 18, para. 172. For detailed elaboration of these cases, see Sellers, supra note 15, at 174. See also Kelly, D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288, 333 (2003).
20 Louise Arbour, Crimes Against Women Under International Law,
21 Berkeley J. Int’l L. 196, 204 (2003). 21 Although the term “rape camp” does not appear in the Kunarac opinion, it has been used by some commentators. See, e.g., Richard, P. Barrett & Laura, E. Little, Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals, 88 Minn. L. Rev. 30, 30 n.l (2003).
22 Prosecutor v. Akayesu, No. ICTR-96-4-T, paras. 698-734 (Sept. 2,1998). Although this decision is not binding on the ICTY, it does constitute “persuasive authority.” See Kelly, D. Askin, A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to 2003, 11 Hum. Rts. Brief 16, 19 (2004) (referring to ICTY and ICTR jurisprudence as “a useful precedent (nonbinding but highly authoritative) in prosecuting rape, sexual slavery, and other forms of gender violence”); see also David, L. Nersessian, The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals, 37 Tex. Int’l L.J. 231, 240 (2002) (“The Delalić decision also explained the role of precedent in the tribunals, holding that decisions of the joint ICTR-ICTY Appeals Chamber were binding but that decisions by other trial chambers had merely ‘persuasive’ value.”).
For an argument that the ICTR has itself fallen short of the promises foreshadowed by Akayesu, see Stephanie, K. Wood, A Woman Scorned for the “Least Condemned “ War Crime: Precedent and Problems with Prosecuting Rape as a Serious War Crime in the International Criminal Tribunal for Rwanda, 13 Colum. J. Gender & L. 274, 299–317 (2004).
23 See, e.g., Prosecutor v. Milošević, Motion for Judgment of Acquittal, No. IT-02-54-T (June 16, 2004); see also infra note 31 and corresponding text.
24 Charlesworth, Hilary & Chinkin, Christine, The Boundaries of International Law 310 (2000); see also Chinkin, supra note 1, at 56 (noting that the number of women in key positions, in international law generally, remains low, and that in twelve international courts and tribunals studied in September 2002 women occupied only 26 of 173 judicial positions, or 14 to 15%) (citing Linehan, Jan, Women and Public International Litigation: Background Paper for the Project on International Courts and Tribunals (rev. 2002), available at <http://www.pict-pcti.org/publications/PICT_articles/Womenl.pdf>).
25 Charlesworth & Chinkin, supra note 24, at 310 (referring to the numbers of female judges, prosecutors, and investigators).
26 See, e.g., Linda, Watson-Brown, Rape of a Nation, Scotsman, Feb. 27, 2001, at 2 (discussing the sentencing of three Bosnian Serbs to a combined sixty years’ imprisonment for rape and noting that “ [i] n Sarajevo, a group of Bosnian Muslim women were aggrieved at what they saw as lenient sentences”).
27 Charlesworth & Chinkin, supra note 24, at 334.
28 Askin, supra note 19, at 340 (arguing that” [s]ince a primary, but not necessarily exclusive, motivation behind the enslavement was to hold the women and girls for sexual access at will and with ease, the crime would most appropriately be characterized as sexual slavery,” and noting that” [r]egrettably, the term ‘sexual slavery’ was never used in the Judgement”). Others have nevertheless read sexual slavery into the judgment. See, e.g., McHemy, James, Justice for Foca: The International Criminal Tribunal for Yugoslavia’s Prosecution of Rape and Enslavement as Crimes Against Humanity, 10 Tulsa J. Comp. & Int’l L. 183, 184 (2002) (citing CNN, Q & A: The Impact of the Ruling (Feb. 22, 2001), available at <http://www.cnn.com/2001/WORLD/europe/02/22/hague.trial.armanpour/index.html>).
29 Kelly, D. Askin, Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status, 93 AJIL 97, 121 (1999).
30 To date, the ICTY has handed down only one conviction for genocide. Prosecutor v. Krstić, No. IT-98-33 (Aug. 2,2001). It has also found complicity to commit genocide in a more recent case. Prosecutor v. Blagojević, No. IT—02— 60-T (Jan. 17, 2005). By contrast, as of August 2005, the ICTRhad delivered nineteen judgments involving twenty-five accused, twenty-two of whom were convicted and three acquitted. Many were sentenced to life imprisonment, having been convicted of genocide, crimes against humanity, and war crimes. ICTR, Tenth Annual Report, UN Doc. A/60/229-S/2005/534, at 2.
31 Prosecutor v. Karadžić & Mladić, Amended Indictment, No. IT-95-5/18, para. 34(b) (Oct. 11, 2002); id., Amended Indictment, No. IT-95-5/18, para. 34(c),(d) (May 31, 2000); Prosecutor v. Milošević, Bosnia Amended Indictment, No. IT-02-54, para. 39 (Apr. 21, 2004). The failure of the amended indictments against Karadžić and Mladić to include specific language about genocide and rape is particularly striking because the original indictment included such charges, and the ICTY invited the prosecution to include them. Karadžić & Mladić, Review of the Indictments Pursuant to Rule 61, No. IT-95-5-R61, IT-95-18-R61, paras. 94-95 (July 11, 1996) [hereinafter Karadžić & Mladić, Rule 61 Decision], discussed in Charlesworth & Chinkin, supra note 24, at 318. As I discuss in part IV, even feminist critics and reformers of the Tribunal have been reluctant to criticize its failure to distinguish sexual violence against men from that against women.
32 Charlesworth and Chinkin, for example, have complained that the Statute of the International Criminal Court fails to list trafficking in women as a crime against humanity and to require states to change their laws relating to pregnancy. Charlesworth & Chinkin, supra note 24, at 333.
33 Rome Statute of the International Criminal Court, July 17, 1998, Art. 8, 2187 UNTS 3 [hereinafter Rome Statute] . Charlesworth and Chinkin argue that the Statute suggests that rape and other forms of sexual violence constitute a grave breach under the Geneva Conventions. See Charlesworth & Chinkin, supra note 24, at 316. For a discussion of the effects that feminist advocacy had on the Rome Statute, see Human Rights Watch, International Justice for Women: The ICC Marks A New Era (July 1, 2002), available at <http://www.hrw.org/campaigns/icc/icc-women.htm> (“Women’s rights activists throughout the world .. . mobilized at each step of the International Criminal Court (ICC) process.. . . That the ICC has come into force today and is potentially a powerful instrument for protecting women’s rights is a testament to this indefatigable activism and determination.”).
34 For example, for the first time an international tribunal offers the victim the opportunity both to participate actively in the procedures—not only by being a witness, as was the case in the ICTY and the ICTR, but also by making submissions directly—and to claim compensation. See, e.g., Rome Statute, supra note 33, Art. 75; Art. 15(3) (“[Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”); Art. 19(3) (“ [I] n proceedings with respect to jurisdiction or admissibility. .. victims, may also submit observations to the Court.”). Normal procedural protections, such as those in the ICTY and the ICTR, are also foreseen in the Rome Statute, see id., Art. 43(6), and it is a function of the trial chamber to protect the victims. See, e.g., id., Art. 57(3) (c) (“providing] for the protection and privacy of victims and witnesses”); Art. 68 (generally protecting witnesses and their participation in the proceedings). Finally, a Trust Fund for Victims was established pursuant to Article 79, and its board held its first meeting on April 20-22, 2004. First Meeting of the Board of Directors of the Trust Fund for Victims (Apr. 22, 2004), available at <http://www.icc-cpi.int>.
35 Rome Statute, supra note 33, Art. 7(g). Identical language is included in the Statute of the Special Court for Sierra Leone (SCSL), as are many of the procedural protections included in the Rome Statute. Statute of the Special Court for Sierra Leone, annex to Agreement on the Establishment of the Special Court for Sierra Leone, Jan. 16, 2002, UN-Sierra Leone, Art. 2(g), available at <http://www.sc-sl.org>; see also id., Art. 3(e) (finding “[o]utrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault,” offenses that can be prosecuted as violations of the Geneva Conventions); Art. 15, para. 4 (stating that “ [g] iven the nature of the crimes committed and the particular sensitivities of girls, young women and children victims of rape, sexual assault, abduction and slavery of all kinds,” attempts should be made to hire prosecutors and investigators with experience in gender-related crimes and juvenile justice); SCSL, Rules of Procedure and Evidence, as amended, Art. 34, available at <http://www.sc-sl.org>.
36 Oosterveld, Valerie, Sexual Slavery and the International Criminal Court: Advancing International Law, 25 Mich. J. Int’l L. 605, 647 (2004) (“The International Criminal Tribunal for the Former Yugoslavia decided the case of Kunarac, Kovac & Vuković after the conclusion of the negotiations on the ICC’s Elements of Crime.”).
37 Id. at 649.
38 See Vahida Nainar [chair, Women’s Initiatives for Gender Justice], Initiatives to Influence the International Criminal Court Continue!, Posting at email@example.com, to firstname.lastname@example.org (Feb. 6, 2004), available at <http://www.hrea.org/lists/women-rights/markup/msg00250.html>.
39 See id.:
With the institution of the International Criminal Court (ICC or the Court) coming to exist in The Hague, the function of advocacy in the process that the Women’s Caucus so wonderfully performed ceased to exist. Instead a need for an institution has arisen that would perform the function of a ‘gender watch’ of the Court in The Hague. WIGJ has been established in The Hague in response to this need.
40 EC Investigative Mission into the Treatment of Muslim Women in the Former Yugoslavia, Report to EC Foreign Ministers (Warburton Mission II Report), para. 14 (Feb. 1993), available at <http://www.womenaid.org/press/info/humanrights/warburtonfull.htrn>. Others estimate the number as ranging from thirty thousand to fifty thousand women. Andrew, Bell-Fialkoff, A Brief History of Ethnic Cleansing, Foreign Aff., Summer 1993, at 110, 119.
41 The first three examples are from Rhonda Copelon to support her claim that “[geopolitical factors—that this is occurring in Europe, is perpetrated by white men against white, albeit largely Muslim women, and contains the seeds of a new world war—cannot be ignored in explaining the visibility of these rapes.” Copelon, Rhonda, Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, in Mass Rape, supra note 8, at 197, 198 ; see also Chinkin, Christine, Rape and Sexual Abuse of Women in International Law, 5 Eur. J. Int’l L. 1, 2–3 (1994) (discussing rapes of women during and after conflict in Kuwait, Rwanda, Kashmir, Peru, Liberia, and East Timor).
42 Early on, many in the genocidal rape camp, including MacKinnon, contended that rapes by Serbian men of Croatian and Bosnian Muslim women constituted genocide, but later—as Croatia became an aggressor in the war— the focus shifted to the rape of Bosnian Muslims.
43 See, e.g., Catharine, A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 Signs: J. Women in Culture & Soc’y 635, 647 (1983) (“Perhaps the wrong of rape has proven so difficult to articulate because the unquestionable starting point has been that rape is definable as distinct from intercourse, when for women it is difficult to distinguish them under conditions of male dominance.”); id. at 650 (“If sex is normally something men do to women, the issue is less whether there was force and more whether consent is a meaningful concept.”); id. (“[F]orced sex as sexuality is not exceptional in relations between the sexes but constitutes the social meaning of gender .. .”); id. at 652-53 (“But women are also violated every day by men who have no idea of the meaning of their acts to women. To them, it is sex. Therefore, to die law, it is sex.”). MacKinnon encouraged a legal definition of rape that would distinguish rape from everyday sex by focusing on the “meaning of the act from women’s point of view.” Id. at 652. This task was of course made difficult by the fact that women themselves have difficulty distinguishing the two in a state of dominance. See id. at 647.
44 MacKinnon, supra note 8, at 186-87.
45 Id. at 189-90 (endnote omitted).
46 Id. at 189.
47 Copelon, supra note 41, at 198.
48 Id. at 207.
49 Brownmiller, Susan, Making Female Bodies the Battlefield, in Mass Rape, supra note 8, at 180, 180.
50 Copelon, supra note 41, at 205 (describing multiple instances of what she considers genocidal rape in war, and arguing that “[t]he notion that genocidal rape is uniquely a weapon of war is also problematic”).
The argument that genocide could happen on all sides of the war was made in other contexts as well. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. & Herz. v. Yugo. (Serb. & Mont.)), Provisional Measures, 1993 ICJ Rep. 3, para. 43 (Apr. 8) (involving a counterclaim against Bosnia and Herzegovina filed by Serbia and Montenegro requesting “‘the Court to establish the responsibility of the authorities’ of Bosnia-Herzegovina, for acts of genocide against the Serb people”). In September 2001, Yugoslavia withdrew its counterclaims. For a history of the case and a report on the withdrawal, see ICJ Press Release 2001/22 (Sept. 13, 2001), available at <http://www.icj-cij.org>.
51 International Women’s Human Rights Clinic of Cuny Law School, Gender Justice and the Constitution of the War Crimes Tribunal Pursuant to Security Council Resolution 808, App. B to Green, Jennifer et al., Affecting the Rules for the Prosecution of Rape and Other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique, 5 Hastings Women’s L.J. 171, 235, 236–37 (1994) [hereinafter Women’s Hum. Rts. Clinic].
52 See, e.g., id, at 237; Copelon, supra note 41, at 206-08 (discussing her concern regarding “the complete failure of the United Nations and the international community in general to recognize that persecution based on gender must be recognized as its own category of crimes against humanity”).
53 That said, there was significant disagreement about the numbers of Bosnian Muslim women who had been raped during the war. The estimates ranged from a low of twenty-four hundred, reported by some international agencies, to up to sixty thousand by journalists, academics, and politicians. For a discussion of these discrepancies and a critique of the higher number, see Norma von, Ragenfeld-Feldman, The Victimization of Women: Rape and Reporting of Rape in Bosnia-Herzegovina, 1992—1993, Dialogue (Paris), Mar. 1997, available at <http://www.members.tripod.com/~UnconqueredBosnia/Balk8.html> . See also supra note 40 (citing Dame Ann Warburton’s 1993 estimate to the European Council that twenty thousand Muslim women were raped in the conflict).
54 This use of the term “genocide” was unique neither to Bosnia and Herzegovina nor to feminists. Indeed, genocide is often used in popular discourse to refer to mass killing, regardless of whether there is an ethnic or racial motivation or aspect to it. The International Campaign to End Genocide uses an expanded definition of genocide that would include mass killings so that atrocities in Cambodia committed by the Khmer Rouge, for example, would constitute genocide under international law. See The International Campaign to End Genocide (n.d.), at <http://www.genocidewatch.org/internationalcampaign.htm>. Some academics have also argued that the acts of the Khmer Rouge amount to genocide. See, e.g., Hannum, Hurst, International Law and Cambodian Genocide: The Sounds of Silence, 11 Hum. Rts. Q. 82 (1989); Steven, R. Rattier, The United Nations Group of Experts for Cambodia, 93 AJIL 948 (1999) ; Steven, R. Ratner, The Cambodia Settlement Agreements, 87 AJIL 1 (1993).
55 Batinic, Jelena, Feminism, Nationalism, and War: The ‘Yugoslav Case’ in Feminist Texts, 3 J. Int’l Women’s Stud. (2001), at <http://www.bridgew.edu/SoAS/jiws/fall01/batinic.pdf> (“The ‘patriotic’ women’s groups retained Catharine MacKinnon, a well-known U.S. feminist and University of Michigan law professor, to represent wartime rape survivors. .. . According to non-patriotic sources, she, in addition, accepted the ‘patriotic’ condemnation of Serbian and Croatian antinationalist feminists.”) (endnote omitted).
To the extent that MacKinnon aligned herself with the “patriotic group” and seemed to privilege nation over gender, it was a surprising turn. For her, gender has always been the central bias that structures the world, and particularly the lives of women regardless of race or ethnicity. Yet the attempt to link rape to genocide did not necessarily, at least for MacKinnon, give priority to ethnic harm over harm to women. Rather, genocide and the world’s failure to attend to it were both manifestations of male-on-female oppression:
Rape is a daily act by men against women; it is always an act of domination by men over women. But the role of these rapes in this genocidal war of aggression is a matter of fact, not of ideological spin. It means that Muslim and Croatian women are facing two layers of men on top of them rather than one, one layer engaged in exterminating the other, and two layers of justification—”just war” and ‘just life.” Add the representation of this war as a civil war among equal aggressors, and these women are facing three times the usual number of reasons for the world to do nothing about it.
MacKinnon, supra note 8, at 188-89.
56 Batinic, supra note 55 (quoting a letter published in Serbia’s War Against Bosnia and Croatia, 23 Off Our Backs (spec, pull-out sec.) 1, 10 (1993)). This quotation links the rapes to murder, but, as we shall see, the connection between genocide and rape in Bosnia and Herzegovina does not ultimately rely on murder.
57 Id. (quoting Women in Black, Women in Black Against War: A Letter to the Women’s Meeting in Amsterdam on the 8th of March 1993, Women Magazine, Dec. 1993, at 17–18 ).
58 Akayesu, supra note 22, para. 732.
59 Id., para. 733.
60 See, e.g., supra note 56 and corresponding text.
61 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, Art. II, 78 UNTS 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention].
62 Krstić, supra note 30, para. 550; Akayesu, supra note 22, para. 113.
63 Although there are different accounts of the development of the term “ethnic cleansing,” it seems to have had its origins in Serbo-Croatian. See Petrovic, Drazen, Ethnic Cleansing—An Attempt at Methodology, 5 Eur.J. Int’l L. 342, 343 (1994) (footnotes deleted):
Ethnic cleansing is a literal translation of the expression “etničko čišćenje” in Serbo-Croatian/Croato-Serbian. The origin of this term, even in its original language, is difficult to establish.. . . [I]n Kosovo after 1981 . . . . it related to administrative and non-violent matters and referred mostly to the behaviour of Kosovo Albanians towards the Serbian minority in the autonomous province within the Socialist Federal Republic of Yugoslavia.
The term derived its current meaning during the war in Bosnia and Herzegovina, and was also used to describe certain events in Croatia.... As military officers of the former Yugoslav People’s Army had a preponderant role in all these events, the conclusion could be drawn that the expression “ethnic cleansing” has its origin in military vocabulary. The expression “to clean the territory” is directed against enemies, and it is used mostly in the final phase of combat in order to take total control of the conquered territory.. . . The word “ethnic” has been added to the military term because the “enemies” are considered to be the other ethnic communities.
64 Kelly Dawn, Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals 262 n.867 (1997) (quoting M. Cherif, Bassiouni & Manikas, Peter, The Law of the International Criminal Tribunal for the Former Yugoslavia 608–09 (1996)).
65 Id. at 263 (footnote omitted).
66 See, e.g., Catherine, N. Niarchos, Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia, 17 Hum. Rts. Q. 649, 658 (1995) (“At several levels, the rapes reflect the policy of ‘ethnic cleansing’: rape is used as a means to terrorize and displace the local population, to force the birth of children of mixed ‘ethnic’ descent in the group, and to demoralize and destroy.” (footnote omitted)); see also Libby Tata, Arcel, Deliberate Sexual Torture of Women in War: The Case of Bosnia-Herzegovina, in International Handbook of Human Response to Trauma 179, 185 (Arieh, Y. Shalev et al. eds., 2000) (one of four ways that rape was used during the war was to terrorize women into leaving before the war reached a particular area); Kalosieh, Adrienne, Note, Consent to Genocide?: The ICTY’s Improper Use of the Consent Paradigm to Prosecute Genocidal Rape in Foca, 24 Women’s Rts. L. Rep. 121, 132 (2003) (“The genocidal rapes were intended to result in mass exodus of the Muslim population . . . “ ).
For a slightly different view, see Bell-Fialkoff, supra note 40, at 120 (noting that, initially, “rape may have been viewed with a blind eye, permitted in order to ‘boost morale’ or ‘reward’ the soldier or to inflict lasting humiliation and demoralize the enemy,” but that “as the stigma of rape was seen to be effective in driving away women and their families from the lands that Serbs sought to conquer, rape indeed became a new and gruesome weapon in the ancient quiver of ethnic cleansing”).
67 Seada Vranić, for example, complains that” [t]he world named it ‘ethnic cleansing’, as if the euphemism could eliminate the stench of genocide.” Seada, Vranić, Introduction to Breaking the Wall of Silence: The Voices of Raped Bosnia 26 (1996); see also MacKinnon, infra note 71, at 73; MacKinnon, supra note 8, at 186.
68 Even Copelon, via her CUNY clinic, while criticizing the near-exclusive focus on genocide by some, urged the ICTY to treat instances of ethnic cleansing (presumably on all sides) as genocidal. In a memorandum prepared to influence the development of the ICTY, the CUNY clinic stated that “ [w] here rape, forced prostitution and forced pregnancy are vehicles of ethnic cleansing, they are genocidal crimes.” Women’s Hum. Rts. Clinic, supra note 51, at 236. Askin seems to consider genocide to be encompassed by ethnic cleansing, as she sees “humiliation, forced displacement, murder, torture, genocide, rape, forced impregnation, and forced maternity” all as tactics that are a part of ethnic cleansing. Askin, supra note 64, at 262. For a warning against the legal equation of ethnic cleansing and genocide, see Petrovic, supra note 63, at 360.
69 See supra text at note 65; see also note 66 for similar assumptions made by others.
70 See notes 50-52 and corresponding text (discussing Copelon).
71 Catharine, A. MacKinnon, Turning Rape into Pornography: Postmodern Genocide, in Mass Rape, supra note 8, at 73, 74. As the war continued and fighting broke out between the Croats and Muslims, the rapes of Croatian women by Serbs seemed to drop out of MacKinnon’s purview.
72 Slavenka, Drakulić, Mass Rape in Bosnia: Women Hide Behind a Wall of Silence, Nation, Mar. 1, 1993, at 253, 271.
73 Arcel suggested some connection by linking the systematic nature of the rapes to ethnic cleansing. Arcel, supra note 66, at 179 (stating that “all documentation proves that systematic rape was committed mainly upon Bosnian Muslim women by Bosnian Serb and Serb militia . . . , often as a weapon in ‘ethnic cleansing’“). But that of course requires the equation of genocide and ethnic cleansing.
74 Diane Conklin, Special Note to Breaking the Wall of Silence: The Voices of Raped Bosnia, supra note 67, at 15, 18 (emphasis added).
75 Importantly, this dilemma of how to treat atrocities on “all sides” and how to connect the atrocities on one side to genocide was not limited to rape or crimes against women. Academics, activists, and judges have approached the same question of nexus with regard to war crimes generally. In his book on genocide in Bosnia, Norman Cigar begins with parallel language to that found in the rape debate:
The focus here is on the Muslims, although others, notably the Croatians, but Serbs too, have also been the target of atrocities . . . . However, the unique ideological aspects of the anti-Muslim campaign, the sheer numbers of the Muslims affected, and the extent of their suffering warrant a specific examination of that community’s victimization.
Norman Cigar, Genocide in Bosnia: The Policy of “Ethnic Cleansing” 3 (1995).
76 See, e.g., id. at 3—4 (“Killings, torture, rape, and deportation, often carried out in a strikingly gruesome manner, have occurred on a scale not seen in Europe since World War II.”).
77 Kalosieh, supra note 66, at 132 (quoting Campanaro, Jocelyn, Note, Women, War, and International Law: The Historical Treatment of Gender-Based War Crimes, 89 Geo. L.J. 2557, 2572 (2001)).
78 Askin, supra note 64, at 267-69 (quoting Adrien Katherine, Wing & Sylke, Merchán, Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America, 25 Colum. Hum. Rts. L. Rev. 1, 5 (1993) (footnotes omitted) (emphasis added by Askin)).
79 R. Charli, Carpenter, Surfacing Children: Limitations of Genocidal Rape Discourse, 22 Hum. Rts. Q. 428, 436 (2000).
80 See id. at 439 (citing Allen, supra note 8, at 91); see also Neier, Aryeh, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice 186 (1998); Siobhan, K. Fisher, Occupation of the Womb: Forced Impregnation as Genocide, 46 Duke L.J. 91, 125 (1996).
81 Carpenter, supra note 79, at 434. She also notes that forced impregnation was used to punctuate and support claims that rape constituted a war crime and a crime against humanity. Id. at 434, 439-44. In addition, Carpenter usefully critiques the way that the genocide arguments based on forced impregnation tend to conflate several distinct concepts: “The first component of ‘forced impregnation,’ as discussed in the legal arguments, is the act of the rape/conception itself. Second, is the prevention of access to an abortion. Third, is the actual birth of a child.” Id. at 445. Breaking them apart, I believe, is more useful for her analysis (which brings children’s rights to the fore) than is necessary in this discussion, but it is definitely important to note. Carpenter does give credit to those who distinguish between “forced impregnation” and “forced maternity.” Id. at 447-48.
82 Michael, A. Sells, The Bridge Betrayed: Religion and Genocide in Bosnia 22 (1996).
83 Kalosieh, supra note 66, at 132 (quoting Campanaro, supra note 77, at 2571-72).
84 See text at note 65 supra.
85 Askin, supra note 64, at 268 (quoting Wing & Merchán, supra note 78, at 18-19).
86 Catharine, A. MacKinnon, Crimes of War, Crimes of Peace, in On Human Rights: The Oxford Amnesty Lectures 1993, at 83, 90 (Shute, Stephen & Hurley, Susan eds., 1993).
87 Askin, supra note 64, at 271 n.894 (citing id. at 90). Askin continues to use MacKinnon, quoting her distinction between “racial” and “ethnic” rape:
This is ethnic rape. If this were racial rape, it would be pure pollution, the children regarded as dirty and contaminated . . . . Because it is ethnic rape, the children are regarded as clean and purified: their fathers’ babies, Serbian babies, as clean as anyone with a woman’s blood in them and on them can be.
Id. at 272 (quoting MacKinnon, supra note 86, at 90).
88 Id. at 338-39 (footnotes omitted).
89 See, e.g., Niarchos, as quoted supra note 66; see also Women’s Hum. Rts. Clinic, supra note 51, at 237 (stating that “ [t]he offense of forced pregnancy should also be separately identified in order to assure its . .. condemnation both as a crime of gender and a crime of genocide” and that “there are reports that rape .. . has been committed . . . to force [Bosnian Muslim women] to suffer pregnancy and/or childbirth, to bear part-Serbian babies”).
90 Carpenter, supra note 79, at 441-42 (quoting Fisher, supra note 80, at 120-21).
91 Genocide Convention, supra note 61, Art. 11(d).
92 Akayesu, supra note 22, para. 507. The Tribunal stated:
In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.
93 Fisher, supra note 80, at 93, quoted in Carpenter, supra note 79, at 455 (“the women, simply because they are pregnant with the children of the aggressors, cannot bear their own children during this time—their wombs are ‘occupied’“).
94 Anne Tierny, Goldstein, Forced Impregnation as a War Crime Under International Law: a Special Report of the International Program 24 (Center for Reproductive Law & Policy, 1993), quoted in Carpenter, supra note 79, at 455.
95 Carpenter, supra note 79, at 455.
96 Id. at 463-64.
97 Allen, supra note 8, at xi.
98 Arcel, supra note 66, at 182-83.
99 Drakulić, supra note 72, at 270.
101 Vranić, supra note 67, at 29.
102 See, e.g., Drakulić, supra note 72, at 270 (noting the fact” [t] hat their cases might provide evidence against war criminals is not these women’s main concern,” and citing instead their fear of jeopardizing family members’ lives and their desire to forget the rapes and to avoid speaking “the ultimate humiliation and shame”).
103 Stiglmayer, Alexandra, The Rapes in Bosnia-Herzegovina, in Mass Rape, supra note 8, at 82, 99.
105 Id. at 131-37 (section called “The Thing in Your Belly”); id. at 135 (“Women who become pregnant following a rape normally reject both the pregnancy and the children.”).
106 Vera, Fonegovic-Smalc, Psychiatric Aspects of the Rapes in the War Against the Republics of Croatia and Bosnia-Herzegovina, in Mass Rape, supra note 8, at 174, 177 (emphasis added).
107 Arcel does identify one seemingly healthy response among those who were sexually assaulted, in the case of Ajnusha, a twenty-five-year-old woman who was “sexually tortured during the war. When asked in the Karlovac refugee transit centre, Croatia, in 1992, if she felt shame or guilt because of what happened to her, she answered: ‘The shame is theirs, not mine.’“ Arcel, supra note 66, at 181. Still, for Arcel, Ajnusha was “one of the few women who had the ability to differentiate between herself as an object of violence and herself as a subject without any complicity in what happened.” Id.
108 See supra note 49 and corresponding text.
109 Conklin, supra note 74, at 20.
110 It has always been acknowledged that women might be harmed by the loss of their husbands or sons in fighting.
111 Sander, Helke, Prologue to Mass Rape, supra note 8, at xvii, xvii–xviii.
112 Id. At xviii.
113 See Carol, S. Lilly & Jill, A. Irvine, Negotiating Interests: Women and Nationalism in Serbia and Croatia, 1990-1997, 16 E. Eur. Pol. & Societies 109, 139 (2002) (discussing survey).
114 Obrad, Kesić, Women and Gender Imagery in Bosnia: Amazons, Sluts, Victims, Witches, and Wombs, in Gender Politics in the Western Balkans: Women and Society in Yugoslavia and the Yugoslav Successor States 187, 194 (Sabrina, P. Ramet ed., 1999).
115 Id. at 195.
117 Even though rape charges were included in many of the prosecutions, women’s rights advocates pushed for this one to ensure that there would be a case that focused only on rape. As one advocate explained, “If rape were overshadowed in most trials by other crimes, the possibility of breaking new legal ground for women’s rights decreased.” Barkan, supra note 1, at 64. The exclusive focus on rape was widely acknowledged and seen as precedent.
118 Simons, Marlise, UN Court, for First Time, Defines Rape as War Crime, N.Y. Times, June 28, 1996, at A1 , quoted in Askin, supra note 29, at 118.
119 Crimes against humanity under Article 5 of the ICTY Statute require systematic or widespread conduct. See Christin, B. Coan, Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia, 26 N.C.J. Int’l L. & Com. Reg. 183, 202–03 (2000) (suggesting that this requirement of proof of systematic or mass-scale rape likely accounts for the fact that most of the rape prosecutions have been brought under Articles 2 and 3 of the Statute).
One could, of course, see rapes on all sides as systematic or even genocidal. Recall that Rhonda Copelon took this view. See supra notes 50 & 51, and corresponding text.
120 For the first such condemnation, see SC Res. 771, para. 2 (Aug. 13, 1992), 31 ILM 1470 (1992).
121 For an instance in which the Security Council referred to the rapes as systematic and another in which it listed the rapes alongside ethnic cleansing as conduct to be condemned, see infra note 126.
122 Because in a procedural indictment that included rape charges, the trial chamber mentioned ethnic cleansing, Askin has argued that the trial chamber acknowledged “that forced impregnation may constitute evidence of genocidal intent.” See Askin, supra note 29, at 115 (citing Karadžić & Mladić, Rule 61 Decision, supra note 31, para. 64). An earlier review of the same indictments had equated ethnic cleansing and genocide, suggesting that some judges on the ICTY are willing to make that connection. Prosecutor v. Karadzic & Mladic, Review of Indictment, No. IT-95- 18-1, at 4 (Nov. 16, 1995) (Judge Fouad Riad noted that the policy of “ethnic cleansing” “presents, in its ultimate manifestation, genocidal characteristics” and that genocidal intent “may clearly be inferred from the gravity of the ‘ethnic cleansing’ practiced in Srebrenica and its surrounding areas”), quoted in Prosecutor v. Sikirica, Motions to Acquit, No. IT-95-18-T, at n.13 (Sept. 3, 2002). In addition to the equation of ethnic cleansing and genocide, of course, Askin’s conclusion also requires that of rape and forced impregnation. That latter equation became impossible when subsequent amendments to the indictments dropped references to rapes.
123 Kunarac (Trial Chamber), supra note 19, para. 577.
124 Prosecutor v. Kunarac, No. IT-96-23 & IT-96-23/1, para. 3 (June 12, 2002) [hereinafter Kunarac (Appeals Chamber) ].
125 Again, recall that Copelon also saw the rapes as systematic, but systematic on the basis of gender, not ethnicity.
126 In its only resolution specifically focusing on violence against women in the former Yugoslavia, the Security Council acknowledged concern for the “systematic” nature of the rapes in Bosnia and Herzegovina. SC Res. 798, pmbl. (Dec. 18,1992) (“ Appalled by reports of the massive, organized and systematic detention and rape of women, in particular Muslim women, in Bosnia and Herzegovina”). In its resolution establishing the ICTY, the Security Council listed systematic rape of women alongside ethnic cleansing, without drawing an explicit link. SC Res. 827, pmbl. (May 25, 1993), 32 ILM 1203 (1993).
127 Kunarac (Trial Chamber), supra note 19, paras. 883, 886.
128 Kunarac (Appeals Chamber), supra note 124, para. 153.
129 Id., para. 85 (footnotes omitted):
In order to amount to a crime against humanity, the acts of an accused must be part of a widespread or systematic attack “directed against any civilian population”. This phrase has been interpreted by the Trial Chamber, and the Appeals Chamber agrees, as encompassing five elements:
(i) There must be an attack.
(ii) The acts of the perpetrator must be part of the attack,
(iii) The attack must be directed against any civilian population.
(iv) The attack must be widespread or systematic.
(v) The perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such a pattern.
130 Kunarac (Trial Chamber), supra note 19, para. 578.
131 Id., para. 577. The appeals chamber also saw the rapes as one part of the overall attack. Kunarac (Appeals Chamber), supra note 124, para. 3:
The armed conflict involved a systematic attack by the Bosnian Serb Army and paramilitary groups on the non-Serb civilian population in the wider area of the municipality of Foča. The campaign was successful in its aim of “cleansing” the Foča area of non-Serbs. One specific target of the attack was Muslim women, who were detained in intolerably unhygienic conditions . .. [and] mistreated in many ways, including being raped repeatedly.
132 The appeals chamber agreed. Kunarac (Appeals Chamber), supra note 124, para. 154. In fact, this finding was also necessary because the accused claimed they had raped out of sexual urge, not anti-Muslim sentiment.
133 Kunarac (Trial Chamber), supra note 19, para. 584 (footnotes omitted) (emphasis added).
134 Moreover, the trial chamber, while finding it irrelevant in this particular case, at least suggested that crimes against humanity could be committed on all sides: “As the Defence was reminded many times during the trial, the fact that the Muslim side may have committed similar atrocities against Serb civilians . . . is irrelevant in the context of this case.” Id., para. 580.
135 Prosecutor v. Milošević, Amended Indictment, No. IT-02-54-T, para. 32 (Apr. 21,2004) (for crimes in Bosnia and Herzegovina) [hereinafter Milošević, Amended Indictment]. The Kosovo indictment also refers to sexual assaults against Kosovo Albanians, but in the context of crimes against humanity. Prosecutor v. Milošević, Second Amended Indictment, No. IT-99-37-PT (Oct. 16, 2001).
136 Milošević, Amended Indictment, supra note 135, para. 32(c).
137 Similarly, although the original 1995 combined indictment against Karadžić and Mladić for Bosnia and Herzegovina referred to the rape of women in connection with genocide, the amended indictments discuss only sexual violence without referring at all to the gender of the victims. See supra note 31 and corresponding text.
138 Sellers, supra note 15, at 156 (footnotes omitted) (emphasis added). In her analysis of the case law with regard to command responsibility, Sellers deliberately approaches all cases involving sexual assault as creating one body of doctrine, a doctrine she considers to be about gender. See generally id.
139 In an early defense of the Tribunal’s jurisprudence, which permitted witnesses to testify anonymously in certain circumstances, Chinkin noted that the ruling—as well as the ICTY’s Rule of Evidence 96, which makes evidence of prior sexual history inadmissible—applies to male as well as female victims of sexual assault. After setting forth an argument for why rape and sexual assault victims, all of whom she assumes are women, are in need of special treatment, this nod to the “gender neutrality” of the provisions, which she sees as “innovative,” is striking. See Chinkin, supra note 41, at 79.
140 Čelebići, supranote 18, para. 486 (citing Case 10.970, Inter-Am. C.H.R. 186 (1996) (emphasis added)).
141 The Tribunal later emphasized that psychological pain can constitute torture, in a seeming reference back to the Inter-American Commission decision. See id., para. 495 (“The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.”)
142 Askin, supra note 29, at 115 (quoting Karadžić & Mladić Rule 61 Decision, supra note 31, para. 64); see also supra note 122.
143 In the initial charges against Gagović, for example, as well as in the .fomarac indictment, there were references to a victim being told that she would bear Serbian children. See, e.g., Kunarac, Third Amended Indictment, No. IT-96-23-PT, para. 6.1 (Dec. 1, 1999); Kunarac (Trial Chamber), supra note 19, para. 322. Gagović was declared not guilty because the trial chamber found that contradictions in the witness’s testimony undermined her credibility. Id., para. 690; see also Askin, supra note 29, at 119 (discussing the issue in the Foca indictment).
144 See, e.g., Kunarac (Appeals Chamber), supra note 124, para. 154; Kunarac (Trial Chamber), supra note 19, para. 654 (“The treatment reserved by Dragoljub Kunarac for his victims was motivated by their being Muslims, as is evidenced by the occasions when the accused told women, that they would give birth to Serb babies, or that they should ‘enjoy being fucked by a Serb’.”).
145 Askin, supra note 29, at 121.
146 Akayesu, supra note 22, para. 507; see also text at note 92 supra.
147 The indictment against Tadić, for example, originally included charges of rape. See note 18 supra; see also Sellers, supra note 15, at 164 n.60.
148 See, e.g., supra note 143 and corresponding text (discussing charges against Gagović).
149 See supra note 15 (discussing Rule 96).
150 The trial chamber defined rape as:
(i) the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third person.
Furundžija, supra note 18, para. 185.
151 Sellers, supra note 15, at 174 n.107.
153 Kunarac (Appeals Chamber), supra note 124, paras. 129-33 (upholding a similar ruling by the trial chamber).
154 Id., para. 130 (“[T]he circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible.”).
155 Id., para. 120; see also paras. 254-55 (upholding the trial chamber’s conviction of the appellant for enslavement even though some of the victims acknowledged they had been given keys to the apartment at some point).
156 Id., para. 127 (quoting Kunarac (Trial Chamber), supra note 19, para. 460).
157 Id., para. 129.
158 Id., para. 132.
159 Id. At one point, the appeals chamber analogizes the situation of the Bosnian Muslim women to that of prison inmates, and favorably references federal and state laws in the United States that follow a strict liability regime with regard to sexual relationships between prison guards and inmates, where the prison and/or the guard is held liable regardless of whether the inmate consented. Id., para. 131. For a specific critique of this analogy and for the inference of lack of consent in Kunarac more generally, see Halley, Janet, Rape and Its Others: Governance Feminism in International Humanitarian Law, 29 Harv. J.L. & Gender (forthcoming 2006).
160 Kunarac (Appeals Chamber), supra note 124, para. 218 (emphasis added).
161 Id., para. 142 (essentially following the trial chamber’s definition based on the Convention Against Torture and the case law of the ICTY and the ICTR). But see id., paras. 143-48 (making clear that the appeals chamber does not consider that the Torture Convention’s requirement that the perpetrator be acting in an official capacity necessarily reflects the definition of torture under customary international law).
The trial chamber in Čelebići had arguably made a similar finding with regard to all armed conflict. See Čelebići, supra note 18, para. 495, stating:
Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict.
162 Kunarac (Appeals Chamber), supra note 124, paras. 150-51.
163 For a detailed critique of both the Kunarac and Čelebići decisions leading to this per se rule, and a discussion of its relationship to the history of feminist advocacy with regard to rape, see Halley, supra note 159.
164 A defense to torture would be that it was not committed for one of the prohibited reasons (those aimed at “obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person”), Kunarac (Appeals Chamber), supra note 124, para. 142. In Kunarac, however, both the trial and the appeals chambers found a prohibited reason, by rejecting the defendants’ claims that they had acted out of a sexual urge, and finding instead that they had intended to discriminate against the women because they were Muslim. See supra note 144 and corresponding text. The appeals chamber eventually concluded that, “in any case, all acts were committed for the purpose of intimidating or coercing the victims.” Kunarac (Appeals Chamber), supra note 124, para. 154.
165 Kunarac (Appeals Chamber), supra note 124, para. 57 (footnote omitted).
166 Id., para. 59.
167 Interview with Patricia Viseur Sellers, legal advisor for gender-related crimes, International Criminal Tribunal for the Former Yugoslavia, The Hague, Netherlands (May 17, 2004).
168 In fact, the Kunarac trial chamber acknowledged that a consensual relationship existed between a Muslim woman and a Serbian soldier in Foča. Kunarac (Trial Chamber), supra note 19, paras. 271,280,293. The prosecution, defense, and trial chamber recognized that Witness 191, one of the Foča rape victims, married a Serbian soldier during the war. Id.; Prosecutor v. Kunarac, Trial Transcript, Nos. IT-96-23-T & IT-96-23/1-T, at T. 6497 (Sept. 20, 2000) [hereinafter KunaracTrial Transcript] (defense closing argument); id. at T. 6277 (Nov. 20, 2000) (prosecution closing argument). Witness 191 explained that this Serbian soldier had rescued her from her rapists and “ [d] idn’t see [her] just as a Muslim but as a human being.” Id. at T. 6273-74 (prosecution closing argument, quoting Witness 191 ‘s testimony).
Witness 191’s relationship was, of course, not the only interethnic relationship in Foča during the war. In response to a question by the prosecution concerning the possibility of a relationship between an active Serbian soldier and a Muslim woman, a defense witness stated: “Indeed, I didn’t ask, and it was not the only case. Even now some girls go out with Muslim young men, and vice versa. We had so many mixed marriages, so that it wasn’t a big surprise. It was normal, whatever one says about it.” Id. at T. 5682 (Sept. 14, 2000) (Witness DM). The prosecution also referred to Serbian/Muslim relationships and to acts of “goodness” by Serbs toward Bosnian Muslim women:
Scattered throughout the testimony of exceedingly cruel acts were moments of goodness, and the witnesses told you about them: About the Serb woman who befriended those kept at Partizan and did what she could to protect them; about the guards at Partizan who did manage to turn away the soldiers when they came to take women; about the soldier who saved Witnesses 191 and 186 from the accused Kunarac, and who, as 191 poignantly put it, “Didn’t see me just as a Muslim but as a human being,” and whom she later married; and even about those Serb soldiers who refused to rape despite all the pressure from their peers.
Id. at T. 6273-74 (Nov. 20, 2000) (prosecution closing argument). The latter did not, however, make it into the decisions of the Tribunal.
169 Plavsić was charged with two counts of genocide, five counts of crimes against humanity, and one count of violating the laws of war. She “pleaded ‘guilty’ to one count of persecutions on political, racial and religious grounds, a crime against humanity” in 2002. ICTY, Case Information Sheet, Plavsic (IT-00-39 & 40/1), at <http:/’www.un.org/icty/glance/plavsic.htm>. She is now serving an eleven-year sentence in Sweden. The court said: “Her guilty plea (together with remorse and reconciliation), voluntary surrender, post-conflict conduct and age are substantial mitigating circumstances.” Press Release, ICTY Doc. CC/P.I.S./734-e (Feb. 27, 2003), at <http://www.un.org/icty/pressreal/2003/p734-e.htm>; see Prosecutor v. Krajisnik & Plavsic, Amended Consolidated Indictment, No. IT-00-39 & 40-PT (Mar. 7, 2002); see also id., Plea Agreement (Sept. 30, 2002).
170 Nyiramasuhuko was charged with “conspiracy to commit genocide, genocide, complicity in genocide, direct and public incitement to commit genocide, crimes against humanity, and violations of Article 3 Common to the Geneva Conventions and Additional Protocol II.” Prosecutor v. Nyiramasuhuko & Ntahobali, Amended Indictment, No. ICTR-97-21-I (Mar. 1, 2001).
171 In other forums, women have been found guilty of participating in the genocide. In 2001 two nuns were convicted in a Belgian court for killings they had committed. Moreover, according to official statistics in 2001, most of the 3,105 women in prison in Rwanda were there on genocide-related charges. Six women had received the death penalty for their roles in the genocide. See Hogg, Nicole, Women Accused of Genocide in Rwanda, Newsletter (Coalition for Women’s Rights in Conflict Situations, Montreal) (n.d.), available at <http://www.womensrightscoalition.org/publications/vol4Nol/womenaccusedofgenociderwanda_en.php> (citing Rwandan Ministry of Interior).
172 See, e.g., supra note 113 and corresponding text (discussing 1994 survey results on Serbian women and nationalist policies).
173 For others who have made this argument, although not in the context of the rules of consent, see, for example, Lilly & Irvine, supra note 113, at 109 (“Women have most often been seen as victims of the post-communist transition in Yugoslavia . .. and especially of the ethnic conflict that accompanied it.”); Kesić, supra note 114, at 193 (“This status of victim for women and the image of women as victims produced by governments, media, and the military is extremely complex. It is perhaps the most manipulated image associated with war.”).
174 In one community, for example, an imam was reported to have issued a fatwa “that men should marry these women and raise the progeny of the rape in a Muslim spirit.” Drakulić, supra note 72, at 271. Drakulić’s point is that “[w]omen who have been raped have almost no future” because “each of them knows that [such marriage] is unlikely to happen.” Id.
Brownmiller discusses a similar attempt made by the Bangladeshi government, in reaction to the estimated two hundred thousand Bengali women (80% of whom were estimated to have been Muslim) who were raped by Pakistani soldiers during the nine-month Pakistan-Bangladesh conflict. To lessen the stigma and humiliation of women, encourage their return to their husbands, and facilitate marriage for those who were unmarried, Prime Minister Mujibur Rahman declared that victims of rape were national heroines. Somewhat pessimistically, Brownmiller notes that few prospective bridegrooms stepped forward, and those that did made it clear that they expected compensation from the government. Brownmiller, Susan, Against Our Will: Men, Women and Rape 78–86 (1975).
175 For a critique of representations of “Islamic law” and an argument that there is no generalized Islamic law, even in the predominantly Muslim parts of the world, see generally Lama, Abu-Odeh, The Politics of (Mis)Recognition: Islamic Law Pedagogy in American Academia, 52 Am. J. Comp. L. 789 (2004).
176 Ironically, many have argued that it was that way of thinking that kept the world from intervening in Bosnia and Herzegovina for so many years. As Vranić puts it:
World leaders conveniendy believed the falsifications and lies about Bosnia as a “hybrid” state . . . . [T]hey resorted to the fiction of a civil war, reviving the old myth of the atavistic need of the people of Bosnia to ritually engage, over time, in mutual bloodlettings. But if they ignored the historical facts, it is strange indeed that they ignored a very recent fact—ethnically mixed marriages constitute almost a third of all marriages in Bosnia. That this would be true in an “ambience of centuries of ethnic hatred” did not tell them anything.
Vranić, supra note 67, at 25; see also Sells, supra note 82, at 11.
177 Vranić, supra note 67, at 25; see also Bringa, Tone, Being Muslim The Bosnian Way: Identity and Community in a Central Bosnian Village 151 (1988) (“Although the number of mixed marriages is difficult to document, it has been suggested that 27 percent of all marriages in Bosnia-Herzegovina before the war were between people of different nacije.”) (citation omitted).
178 For Sells, the difference was not cause for animosity. Rather, he contends (perhaps a bit too romantically) that the prewar understanding of what it is to be Bosnian is to be “any resident of Bosnia-Herzegovina who seeks a nation based not on exclusive religious affiliation but on constitutional rule and respect for differing religions.” Sells, supra note 82, at 8; see also Indijana Hidovic Harper, Personal Reactions of a Bosnian Woman to the War in Bosnia, Feminist Rev., Autumn 1993, at 102, 104 (describing her understanding of her identity before the war in which “[I] saw my social and cultural identity as a part of an ethnically mixed Bosnian tapestry, from which I drew all my cultural and emotional experiences, and to which I belonged together with all other non-Muslim Bosnians”).
179 Bringa, supra note 177, at 255.
180 Mat 21.
181 But the move to national categories—and the recognition of “Muslim” in Bosnia and Herzegovina as a recognized nationality category in the 1971 census—put nonreligious Bosnians from Muslim backgrounds in a difficult position:
This nationality label led to numerous contradictions within Yugoslavia: an Albanian Muslim was not considered to be a “Muslim” in the Yugoslav census of nationalities, but many Bosnians of Muslim background who considered themselves atheists or skeptics declared themselves “Muslim” in the census to avoid the categories of “Serb” and “Croat,” both of which had religious implications. For those who wanted a Bosnian nationality to be affirmed, alongside those of Croat, Slovene, Macedonian, Serbian, and Albanian, this classification of “Muslim” was problematic; it finally gave Bosnian Muslims a political voice alongside Catholics and Orthodox Serbs, but it did so at the cost of further reinforcing the identity between religion and nationality.
Sells, supra note 82, at 14-15.
182 Id. at 15. For Sells, “[t]he term ‘ethnic’ in the expression ‘ethnic cleansing,’ then, is a euphemism for ‘religious.’ . . . [T]he intrinsic aspect—in the form of religious mythology—becomes the motivation and justification for atrocities on the part of the perpetrator.” Id.
183 See supra notes 77 & 78 and corresponding text.
184 Note, for example, that Askin quotes Wing and Merchán, see supra note 78. Kalosieh quotes Campanaro, see supra note 77. Campanaro, supra note 77, at 2567 n.61, cites Sharon, A. Healey, Prosecuting Rape Under the Statute of the War Crimes Tribunal for the Former Yugoslavia, 21 Brook. J. Int’l L. 327 (1995), which relies heavily on Wing and Merchán.
185 See, e.g., Wing & Merchán, supra note 78, at 24-25:
The systematic rape of Muslim women in Bosnia could potentially result in the complete destruction of the Muslim social fabric. Because of the centrality of the concept of honor, the rape of one female member of a family can bring shame and disgrace to not only her immediate family, but also the entire extended family. Thus, that family will not command the same position of respect in the community. This change in one family’s social position will then affect the social ordering of that community, as another family may step into the vacuum left by the family of the rape victim. As a consequence, the systematic violation of Muslim women will destabilize the social ordering in Bosnia to the extent that the population will be fragmented and diminished, allowing for easy manipulation of the remaining inhabitants. This phenomenon of destabilizing and destroying the social order of an entire population group constitutes group spirit injury.
186 See Lacey, Marc, A Decade After Massacres, Rwanda Outlaws Ethnicity, N.Y. Times, Apr. 9, 2004, at A3 (discussing Rwanda’s law against “divisionism” and observing: “It is not just considered bad form to discuss ethnicity in the new Rwanda. It can land one in jail.”); see also Selva, Meera, Rwandans Made to Live in Fear by Abuse of Anti-Genocide Laws, Independent (London), Aug. 5, 2004, at 27 (accusing the Rwandan government of abusing the laws by using them to “quell any sort of dissent”).
187 Čelibići, supra note 18, para. 99; see also Prosecutor v. Stakic, No. IT-97-24, para. 24 (July 31, 2003) (“Apart from the differences in their cultural heritage and religious tradition, the three groups had much in common and peacefully coexisted for most of the time.”); Prosecutor v. Kvocka, No. IT-98-30/1, para. 9 (Nov. 2, 2001) (“However, apart from the difference of religion (and to a degree of custom and culture), all three of the predominant groups in Bosnia and Herzegovina are of Slav descent, speak the same language (apart from minor regional differences), have often intermarried , and frequently bear common surnames.”); Tadić, supra note 18, para. 64 (‘Yet in the postwar years until about 1991 and, despite past horrors or perhaps having learned better from them, the multi-ethnic population of Bosnia and Herzegovina apparendy lived happily enough together.”)
188 Tadić, supra note 18, para. 64.
189 Kvocka, supra note 187, para. 9.
190 Allen, supra note 8, at xi, xii.
191 Gutman, Roy, A Witness To Genocide 65 (1993).
192 See supra note 168 and corresponding text.
193 Statements about how men would never imagine they would be prosecuted are quite common. See, e.g., Mezey, Gillian, Rape in War, 5 J. Forensic Psychiatry 583, 591 (1994) (“The men who commit these crimes know that there will be no punishment, no retribution . . . “ ).
194 In France, for example, many women had their heads shaved or were forced to walk naked in the streets. For a discussion of the treatment of these women and an argument that many of them had no sexual involvement with German soldiers, see generally Virgili, Fabrice, Shorn Women: Gender and Punishment In Liberation France (Flower, John trans., 2002).
195 But see supra notes ll4-16 and corresponding text (discussing how some in the rape-as-genocide camp accused those in the rape-on-all-sides camp as complicit in the atrocities committed by Serbs).
196 I am grateful to Pascale Bos for informing me about this debate. For an English-language discussion of the controversy in the early 1990s, see Grossmann, Atina, Feminist Debates About Women and National Socialism, 3 Gender & Hist. 350 (1991).
197 Id. at 351 (discussing Bock, Gisela, Zwangssterilisation Im Nationalsozialismus. Studien zur Rassenpolitik und Frauenpolitik (1986)).
198 Befreier Und Befreite (Inter Nationes 1992). See also the book by the same title, Sander, Helke & Johr, Barbara, Befreier Und Befreite: Krieg, Vergewaltigungen, Kinder (1992).
199 Strickland, Richard & Duwury, Nata, Gender Equity and Peacebuilding: From Rhetoric To Reality 8 (2003), available at <http://www.icrw.org/docs/gender_peace_report_0303.pdf> (noting also “an extensive literature exploring] the interconnections between the roles of women and men in conflict situations and the politics of identity and agency”).
200 Id. (“Individuals constantly negotiate between the primacy of gender identity and the assertion of other social identities of ethnicity, class, and religion. Thus, women in situations of ethnic or religious conflict may reinterpret their gender oppression in ethnic or religious terms.”)
201 Id. As another example of this attitude with regard to accusations of genocide aimed at women, see Landesman, Peter, A Woman’s Work, N.Y. Times, Sept. 15, 2002, §6 (Magazine), at 82 (discussing the genocide charges against Pauline Nyiramasuhuko).
202 Ehrenreich, Barbara, Prison Abuse; Feminism’s Assumptions Upended; A Uterus Is Not a Substitute for a Conscience. Giving Women Positions of Power Won’t Change Society by Itself L.A. Times, May 16, 2004, at Ml.
204 Wolf, Naomi, Equal Wrongs, N.Y. Mag., May 24, 2004, available at <http://newyorkmetro.com/nymetro/news/politics/columns/n_10405/>.
205 This analysis is indebted to Janet Halley’s ongoing critique of feminists’ denial of their own will to power. See, e.g., Halley, Janet, Split Decisions: How and Why to Take A Break from Feminism (forthcoming 2006); Halley, Janet, Taking a Break from Feminism, 12 Colum. J. Gender & L. 601, 604–17 (2003).
206 Mezey, supra note 193, at 585.
207 See generally id.
208 The absence of such stories was noted in 1993 by Suzanne Gibson, in a critique of a lecture given by MacKinnon: “And yet, there was a great deal which was not recounted. We heard nothing about Bosnian or Serbian women’s resistance, their struggle for survival, women occupying their lives as subjects rather than as the objects of violence or pity.” Gibson, Suzanne, The Discourse of Sex/War: Thoughts on Catharine MacKinnon’s 1993 Oxford Amnesty Lecture, 1 Feminist Legal Stud. 179, 182 (1993). For some stories of various ways that Bosnian women, raped or not, “fought back” during the war, even militarily, see Abdela, Lesley, Bosnia: Women Are Fighting Back, Cosmopolitan (UK), Sept. 1994, at 16. “As the war limps on in the former Yugoslavia,” the magazine’s lead-in to the story reads, “[w]omen, if they’re mentioned at all, are portrayed as pathetic victims of war. To redress the balance, Cosmo sent Political Editor, Lesley Abdela, to an embattled Bosnian enclave and to the Croatian capital, Zagreb, to meet some of the courageous women who are caught in the crossfire.” Id. at 17.
For a book in a totally different context that attends both to the experience of sexual trauma and to the ways that victims have deployed it in politically, civically, and personally transformative ways, see Cvetkovich, Ann, An Archive of Feelings: Trauma, Sexuality, And Lesbian Public Cultures (2003).
209 Calling The Ghosts: A Story About Rape, War and Women (Women Make Movies 1996).
211 It is estimated that Serbian forces killed seven thousand men in the massacre. Rohde, David, In Bosnia, World Leaders Apologize for Massacre, N.Y. Times, July 12, 2005, at A6.
212 Fionnuala, Ni Aolain, Sex-Based Violence and the Holocaust—A Reevaluation of Harms and Rights in International Law. 12 Yalej.L. & Feminism 43, 45 (2000).
213 See supra notes 131-32 and corresponding text.
214 See supra notes 138-39 and corresponding text.
215 MacKinnon, supra note 8, at 186.
216 Id. (“This .. . maneuver is familiar to those who work with the issue of rape: .. . criticize our lack of neutrality in not considering rapes of men to be a comparable emergency.”)
217 For this observation I am indebted to work elaborating a similar critique in the context of sexual harassment law in the United States. In particular, see Katherine, M. Franke, Putting Sex to Work, in Left Legalism/Left Critique 290 (Brown, Wendy & Halley, Janet eds., 2002); Halley, Janet, Sexuality Harassment, in id. at 80 ; Schultz, Vicki, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1683 (1998).
* I am grateful to Hilary Charlesworth, Janet Halley, David Kennedy, Joseph Schneider, Carol Silverman, Chantal Thomas, and Ralph Wilde for their detailed and insightful comments on this piece, as well as to audiences at Drake University, Harvard Law School, the University of Oregon, the University of Texas, and the European Society of International Law for their useful feedback. Thanks also to Emily Booth, Andrea Delisi, Jeremy Freeman, Ruth Karper, Lucas Lixinski, and Benjamin Putnam for their research assistance and Hollin Dickerson and Gregory Krauss for their editing advice.
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